143 F.3d 1324 (10th Cir. 1998), 96-2194, Rascon v. US West Communications, Inc.

Docket Nº:96-2194.
Citation:143 F.3d 1324
Party Name:CJ C.A.R. 2194 Robert A. RASCON, Plaintiff-Appellee, v. U S WEST COMMUNICATIONS, INC., Defendant-Appellant, Equal Employment Opportunity Commission, Amicus Curiae.
Case Date:May 06, 1998
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 1324

143 F.3d 1324 (10th Cir. 1998)

CJ C.A.R. 2194

Robert A. RASCON, Plaintiff-Appellee,


U S WEST COMMUNICATIONS, INC., Defendant-Appellant,

Equal Employment Opportunity Commission, Amicus Curiae.

No. 96-2194.

United States Court of Appeals, Tenth Circuit

May 6, 1998

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[Copyrighted Material Omitted]

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E. Justin Pennington (Loretta Medina on the brief), Albuquerque, New Mexico, for Plaintiff-Appellee.

James E. Hautzinger (Heather Fox Vickles with him on the brief), Sherman & Howard, Denver, Colorado, for Defendant-Appellant.

C. Gregory Stewart, General Counsel; J. Ray Terry, Jr., Deputy General Counsel; Gwendolyn Young Reams, Associate General Counsel; Lorraine C. Davis, Assistant General Counsel and Robert J. Gregory, Attorney, Washington, DC, on the brief for Amicus Curiae Equal Employment Opportunity Commission.

Before EBEL, McWILLIAMS, and HENRY, Circuit Judges.

HENRY, Circuit Judge.

Following a bench trial, the district court entered judgment in favor of Mr. Rascon on his claim arising under the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101-12213 (1995). U S West appeals, arguing that the district court erred in various respects. Finding no error, we affirm.


Mr. Rascon suffers from posttraumatic stress disorder, presumably as a result of his service in Vietnam in 1968-69. This case arises from absenteeism caused by his participation in an in-patient posttraumatic stress disorder treatment program. While Mr. Rascon was participating in the program, U S West terminated his employment.

In 1971, Mr. Rascon began working for U S West as a Network Technician in Albuquerque. Although he received satisfactory to outstanding job performance ratings, he had problems with anger and fighting in the workplace. U S West suspended him eleven times and fired him three times due to fighting; however, it reinstated him each time.

In the early 1980's, U S West sent Mr. Rascon to an in-house anger management counseling program. A U S West Employee Assistance Counselor advised him that he had posttraumatic stress disorder. Mr. Rascon's symptoms included cluster headaches, insomnia, impaired ability to judge situations, difficulty in concentrating and controlling intrusive memories, flashbacks, anger, irritability, suspiciousness, hostility, and nightmares. In 1989, Mr. Rascon attended a posttraumatic stress disorder counseling program through the Albuquerque Veterans Administration (VA). This program involved individual therapy and weekly group sessions. Dr. Jose Canive supervised Mr. Rascon's therapy at the VA.

In 1991, Mr. Rascon received paid disability leave from U S West in order to attend a seven-week out-patient treatment program at the VA. U S West allowed him to work part-time during this treatment program. After completing the program, Mr. Rascon received additional leave in order to work half days for a period of three months. Even with this treatment, Mr. Rascon's posttraumatic stress disorder symptoms persisted. Dr. Canive, therefore, recommended that Mr. Rascon seek more intensive treatment from the National Center for Posttraumatic Stress Disorder in Menlo Park, California. Dr. Canive submitted an application to the Menlo Park program on behalf of Mr. Rascon.

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On October 10, 1992, Mr. Rascon received notice that he would be granted a screening interview for admission into the Menlo Park Program. On January 6, 1993, he informed his supervisor, Lorrie Sullivan, that he would be attending the screening on January 21, 1993. He told Ms. Sullivan that he had posttraumatic stress disorder, and he tried to explain to her what it was and why he was seeking this type of treatment. When Ms. Sullivan became Mr. Rascon's supervisor (two months earlier), she did not know what posttraumatic stress disorder was. She testified that in January, Mr. Rascon told her he had "this Vietnam syndrome." Aplt's App. vol. IV at 463.

During the January 6th conversation, Mr. Rascon informed Ms. Sullivan that the program could take anywhere from six weeks to nine months, but that a four-month duration was likely. He requested a paid leave of absence under U S West's disability plan, but he told Ms. Sullivan that he wanted to participate in the Menlo Park program regardless of whether U S West approved a paid disability leave. The following day, Ms. Sullivan informed Mr. Rascon that U S West's Health Services Department needed further information in order to process his request for leave. He stated that he did not wish to contact Health Services and asked Ms. Sullivan to find out what information was needed.

On January 14, 1993 (Mr. Rascon's last day at work), Mr. Rascon attended a meeting with management and two union representatives. At that time, Ms. Sullivan advised Mr. Rascon that U S West did not have enough information to grant a paid disability leave but that U S West would grant unpaid departmental leaves of absence, thirty days at a time, in order for him to attend the Menlo Park program. During this meeting with Ms. Sullivan, Mr. Rascon requested that U S West grant leave for the duration of his treatment, rather than in thirty-day increments. He reminded her that the estimated duration was four months. Ms. Sullivan denied this request. Ms. Sullivan did not discuss with Mr. Rascon various options under U S West's leave policies, including Personal Leave of Absence or Anticipated Disability Leave.

Ms. Sullivan prepared a memorandum, memorializing various aspects of the January 14th meeting. The memo, which Ms. Sullivan showed to Mr. Rascon before he left for Menlo Park, reiterated that U S West would reauthorize additional thirty-day leaves of absence as his treatment progressed, if he provided adequate information to Health Services. The memo stated that "[i]t would be best to provide authorization for Health Services to maintain contact and information sharing with all providers involved in the examination and/or treatment process. The best way to ensure that this process occurs smoothly is to complete a release and waiver before absence occurs." Id. vol. I at 75. The memo stated that Mr. Rascon or his doctors must apprise Health Services on a continuing basis that he was following recommended treatment in order for Health Services to reauthorize thirty-day departmental leaves. It further stated that because Mr. Rascon had not supplied Health Services with what it considered sufficient information, U S West was denying paid leave.

After Ms. Sullivan showed Mr. Rascon the memo, he signed a release authorizing U S West's Health Services Department to maintain contact with his health care providers and gain access to his medical records. Mr. Rascon understood from Ms. Sullivan that signing the release was all that was required of him in terms of U S West accessing information regarding his disability. Id. vol. II at 86. Mr. Rascon signed two medical releases, one for the VA in Albuquerque, and one for the Menlo Park program. Id. at 162. The releases were valid for one year, unless revoked in writing.

The day after the meeting, just before Mr. Rascon left for Menlo Park, he spoke with Cindy Truitt, a counselor in U S West's Health Services Department in Denver. The conversation lasted for approximately one hour. During the conversation, Mr. Rascon explained his circumstances in detail to Ms. Truitt. Ms. Truitt informed Mr. Rascon that it was important that his doctors remain in contact with her. Ms. Truitt testified that she told Mr. Rascon a medical release was not enough and that it would be necessary for his doctors to remain in contact with her. Id. vol. V at 668.

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Following this conversation, Dr. Canive and Ms. Truitt had a telephone conversation about Mr. Rascon. Just after the conversation, and in response to it, Dr. Canive mailed Ms. Truitt a letter providing the Health Services Department with requested information. In his letter, Dr. Canive explained that Mr. Rascon had been a patient in the posttraumatic stress disorder program at the VA in Albuquerque. Dr. Canive noted that despite Mr. Rascon's full cooperation in the program, his "irritability, anger, suspiciousness, hostility, nightmares, intrusive memories and insomnia continued to interfere with his daily living." Id. vol. I at 167. Dr. Canive explained the reasons for his referral of Mr. Rascon to the Menlo Park program. Dr. Canive stated that as a result of his posttraumatic stress disorder, Mr. Rascon "has been severely impaired both at work and at home. The fact that he continued to work in spite of his severe symptoms demonstrates his high motivation and work ethic." Id. at 168. Dr. Canive asked U S West to reconsider Mr. Rascon's case and grant him some disability income during his treatment at Menlo Park. He closed his letter by inviting Ms. Truitt to contact him if she needed further information. After Dr. Canive sent this letter to Ms. Truitt in early February, nobody from U S West contacted him for more information about Mr. Rascon. Id. vol. III at 252.

The Menlo Park treatment program admitted Mr. Rascon on January 21, 1993. Upon admission to the program, the doctors there diagnosed him with posttraumatic stress disorder. His treatment in Menlo Park consisted of classes and intensive group and individual therapy sessions seven days a week, from approximately 8:00 a.m. to 5:00 p.m.

Mr. Rascon's first thirty-day departmental leave ran from January 21, 1993 to February 21, 1993. In a letter dated March 10, 1993, U S West authorized a second thirty-day departmental leave to run from February 22, 1993 to March 22, 1993. In that letter, Ms. Sullivan stated that "[t]he medical department of U S West has been unable to certify any disability due to inadequate information from...

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